sideration for which it had been executed was fuly arranged between them and the bank. This action by the defendants involved or resulted in a disagreement as to what was the consideration. But notwithstanding the disagreement, the plaintiff contends that the deed was in fact delivered in the circumstances attending its execution.

The circumstances were these: John Bailhace was cashier and one of the directors of the Bank of Healdsburg; at the same time Jonas Bloom was President and also one of its directors. While acting as cashier, Bailhace had overdrawn his account with the bank to the extent of about ten thousand dollars; and he owed the firm of "Bloom & Cohn" (of which firm Jonas Bloom was a member), twelve thousand dollars secured, in part, by stock in said bank belonging to the debtor. When the amount of Bailhace's overdraft was discovered the directors of the bank verbally notified him that ho must make his account good or resign. Upon this notification, Bailhace made out his resignation, signed it and delivered it to one of the directors. There was no meeting of the directors called to consider it, nor does there appear to have been any official notice taken of the delinquency or the resignation. While the matter stood in that condition, Bailhace informed two of the directors that he had induced his wife to convey her land to the bank in satisfaction of his debt, in consideration that the bank would release him from the debt, loan him the further sum of five hundred dollars, and retain him as cashier at a salary of one hundred dollars per month, Upon that information the two directors returned to him his resignation, delivered him the key of the bank, and restored him to his position as cashier. This was done with the individual consent of each director."

For the purpose of completing the arrangement, Mrs. Bailhace and her husband met with two of the directors, ready to execute and deliver their deed. A deed in proper form was prepared. The husband executed and acknowledged it; and immediately handed it to one of the directors for the signature and acknowledgement of his wife. When the deed was laid before her she refused to sign; but after a brief hesitation, she signed it in the presence of Bloom the President of the bank, and passed it to him, and he passed it, "at once," to a notary, who was present, to take her acknowledgement. She acknowledged the deed according to the legal ceremony; and the notary took it to his office to append his certificate. Having attached his certificate in due form, he started with the deed to deliver it, in its completed form, to Mrs. Bailhace. On the way he met with one of the directors of the bank, named Wilson, to whom he handed the deed. But as soon as Wilson received it, the defendants called to him and told him not to deliver it until matters between them and the bank were fully arranged. Wilson promised to do as they requested; and he took the deed home with him, and kept it, from the day he received it from the hands of the notary, until the 16th of June, 1880, when he returned it to Mrs Bailhace,

upon her demand. She afterwards refused to deliver it, because, as she declared, the President of the bank had not kept faith with her in carrying out the arrangement upon which she had consented to execute it.

Whether the reason she gave was true or false has no direct bearing on the question of the delivery of the deed arising out of the circumstances attending its execution. The contention of the plaintiff that the deed was delivered when Mrs. Bailhace signed it in the presence of the notary and silently passed it to Bloom, the President of the bank, cannot be successfully maintained; for although signed, the deed was not acknowledged and certified according to law; and until the deed of a married woman is acknowledged and certified according to the formalities prescribed by sections 1,186 and 1,191, of the civil code, it has no validity, and is not in a condition to be delivered or accepted. "If a man seal and acknowledge before a Mayor, or other officer appointed for that purpose, a writing for a statute or recognizance, this acknowledgment before such officer shall not amount to a delivery of the deed so as to make it a good obligation, if it happen not to be a good statute or recognizance:" 1 Shep. Touch., 58.

Nor did a delivery take place when the notary handed the deed, as a completely executed deed, to Wilson, one of the directors of the bank, who, when he received it, promised not to deliver it until matters between the parties to it were arranged. In receiving and promising thus to hold it, Wilson acted as the depositary of the deed, and as the agent of Mrs. Bailhace. As her agent he had no authority to deliver it until he received instructions from her to that effect. No such instructions were given to him, and he recognized his position by afterwards returning the deed to his principal: Fitch v. Bunch, 30 Cal., 208.

Besides, to constitute delivery of a deed there must not only be delivery by the grantor, but an acceptance by the grantee. In the case in hand, the minds of grantor and grantee seem never to have met upon the subject of the execution and delivery of the deed in settlement of the affairs of the bank, for neither before nor after the discovery of the deficit in the accounts of the cashier was there any meeting of the board of directors to consider the accounts; and at no time during the individual transactions of some of the directors with the cashier in relation to his accounts with the bank, or the possession of the deed by Wilson, did the board of directors, at a regular meeting, by resolution or otherwise, authorize a settlement. with the cashier upon a basis of a conveyance to the bank by Mrs. Bailhace of her separate real estate. Power to make such a settlement, and to accept such a deed for that purpose, was a function of the board of directors, and not of the president of the bank, nor of any individual director nor executive officer. The attempt by an individual officer to exercise such a function, without the assent and authority of the board of directors, expressed at a regular meeting, was therefore irregular and beyond the sphere of his action.

Crowley v. Genesee Mg. Co., 55 Cal. 275; McKiernan v. Lenzen, 56 I. 61; Seeley v. San Jose M. & L. Co., 59 Id. 23, and Shaver v. Bear River and A. W. M. Co., 10 Id. 400, are not in conflict with this conclusion. Those causes were decided upon the broad principle that, while the authority of all officers or agents of a corporation must be limited to such modes of binding the corporation as result from the nature of their duties and the powers conferred upon them, yet where the corporation itself holds out to the public that its officers or agents have authority to act according to the general usage, practice and course of its business, the acts of such agents within the scope of such usage, practice and course of business will be binding upon the corporation in favor of third persons possessing no knowledge to the contrary. But the settlement of a defalcation to a bank, and the acceptance of a deed of real estate in satisfaction and release, are not transactions which fall within the ordinary powers of a corporation, which may be exercised by its agents or persons who are held out to the public as such. Power to do such acts must be conferred by the board of directors: Gashwiler v. Willis, 33 Cal. 11; Blen v. Bear River Co., 20 Id. 602.

Judgment affirmed.

MCKINSTRY, J., and Ross, J., concurred.

No. 7,644.

NELSON V. FLOYD. FRASER 2. NELSON ET AL.

Department One. Filed June 13, 1884

NEW TRIAL-CONFLICT OF EVIDENCE-An order granting a new trial, on the ground of insufficiency of evidence to justify the decision and judgment, will not be disturbed, in the absence of a manifest abuse of discretion, when there is a substantial conflict in the evidence upon the main issues.

APPEAL from an order of the superior court of Lake county, granting a new trial. The opinion states the facts.

Cope & Boyd and O'Brien, for the appellants.
John S. Bugbee, for the respondent.

THE COURT. The decision and judgment, which the court set aside, were founded upon substantially conflicting evidence bearing upon the main questions at issue between the parties, as to the existence and extent of the subordinate claims and liens against the building in controversy; and as the court set them aside and granted a new trial, upon the ground that the evidence was insufficient to justify them, this court, in the absence of a manifest abuse of discretion, will not disturb the order: Guttierrez v. Brinkerhoff, 9 Pac. C. L. J., 734; Blum v. Sunol, 11 Id. 275; Pierce v. Schaden, 55 Cal. 406; Bronner v. Wetzlar, Id. 419.

Order affirmed.

The laws of nature certainly give a natural right and advantage, from their superiority of position, to those who own land lying on the banks of natural streams. It is an undeniable fact that such proprietors have a natural right as compared with those who own land at a distance from streams. Legislation which disregards this fact, which attempts to deprive the one class of their natural right and advantage, and to confer the same right and advantage upon the other, is necessarily impracticable; it cannot work successfully; it is essentially unjust, and can only produce wrong. Statutes, however elaborate and detailed, which invade natural rights and violate the sense of natural justice, must be the occasion of unlimited confusion, strife, contention and litigation; nothing can be settled and established by them. The common law doctrines recognize and protect this natural right and advantage of the privato riparian proprietor; they regard it as a fact which can not be denied nor overcome, and they build all of their specific rules upon it as a founda-tion.

A similar natural advantage is connected with landed ownership in many other respects. Those who own fertile and productive lands have an enormous natural superiority over those proprietors whose lands are wholly situated in barren and unproductive soils and regions. Is this. any just ground for legislation which would authorize the latter class toinvade the possessions of the former, and to deprive them of some portion of their more valuable property? Those who own land upon which there is a supply of forest trees, have a great natural advantage over those whose lands are entirely devoid of timber. Is this any just ground. for statutes enabling the latter to claim and appropriate a portion of the timber land belonging to the former? The use of the stream and of tuo water flowing through it, forms a part of the rights incident to and involved in the ownership of the lands upon its borders. This is the principle recognized by the common law, and which should be recog